Now that the euphoria over the Supreme Court’s landmark Section 377 verdict is fading, we can ask whether such pronouncements are anything more than ineffectual dictums on paper—just like the many rights enshrined in the Constitution that are conspicuous only in their violation, as would happen in any society that is yet to imbibe rational and scientific values. And when the political regime itself promotes obscurantism, traditions and customs, against the constitutional mandate, the prospects of reform are bleak. The recent crackdown on top defenders of democratic rights by the Pune police, branding them ‘urban Maoists’, illustrates how draconian laws and the discretionary powers of the police can easily thwart and render useless the fundamental rights in the Constitution. The devil—as BR Ambedkar lamented in 1955, explaining his earlier outburst in the Rajya Sabha disowning the Constitution—had taken possession of the temple (the Constitution of India) they built before they could install the gods.
As the working of law largely depends upon the government’s morality, when it resorts to amoral means for ulterior motives, law’s utility comes under question. Take Dalits, who have been granted certain safeguards, in an exception to the universal rights in the Constitution, with a plethora of Articles for promotion of their interests and their protection from social injustice. Article 17 outlaws the practice of untouchability, making enforcement of any disability arising out of untouchability a punishable offence. And yet survey after survey since the 1960s have revealed the practice remains intact despite enactment of the Protection of Civil Rights Act, 1955, and later the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989, which only served the political purpose of placating Dalits and paradoxically intensifying prejudice against them among others. The Action Aid Survey in 2001-02, Navsarjan survey of Gujarati villages in 2009 and the latest NCAER and the University of Maryland (IHDS) survey in 2011-12 all reveal that untouchability in all its forms is still rampant in India.